Proceeding under s 51 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) - Application for dismissal of proceeding under s 47 of the State Administrative Tribunal Act 2004 (WA) - Whether deed of settlement and release precludes applicant from pursuing the proceeding

Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 36(1)(a), s 36(1)(b), s 36(1)(c), s 37, s 51, s 55(1)

State Administrative Tribunal Act 2004 (WA), s 46(3), s 46(4), s 46(5), s 47, s 47(3), s 47(4)

Ambrus and Churches of Christ Homes and Community Services Incorporated [2006] WASAT 141

Black Box Control Pty Ltd v Terravision Pty Ltd [2016] WASCA 219

Grant v John Grant & Sons Pty Ltd [1954] HCA 23; (1954) 91 CLR 112

Laurent and Commissioner of Police [2009] WASAT 254

Legal Services and Complaints Committee and McCardle [No 2] [2023] WASAT 131

Mercanti v Mercanti [2016] WASCA 206

1. The respondent, Hanssen Pty Ltd has applied to have this proceeding dismissed or struck out.
2. For the reasons which follow I have decided to dismiss the proceeding pursuant to s 47 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) on the basis that it is misconceived or lacking in substance.[1]

1. On 24 July 2017, pursuant to s 37 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act), the Building Commissioner made Building Remedy Order No 186 of 2017 (BRO) against the respondent in favour of the applicant, Owners of Strata Plan 62077 in respect of a building service carried out by the respondent at 143 Adelaide Terrace, East Perth, Western Australia (known as X2 Apartments).
2. The BRO was an order of the type referred to in s 36(1)(a) of the BSCRA Act (a work order).
3. Under s 51 of the BSCRA Act, if the Building Commissioner is satisfied that a work order made by him/her has not been complied with by the person against whom it was made, the Building Commissioner may revoke the work order and replace it with a building remedy order of the type referred to in s 36(1)(b) or (c) of the BSCRA Act (a monetary order).
4. On 31 May 2018 the Building Commissioner filed with the Tribunal an application dated 28 May 2018 to transfer the matter to the Tribunal under s 55(1) of the BSCRA Act for the Tribunal to make a decision under s 51 of the BSCRA Act regarding alleged non­compliance with the BRO. At a directions hearing on 26 June 2018 the Tribunal consented to the transfer of the matter and made programming orders for the progression of the proceeding as Matter Number CC 1149/2018 (2018 Tribunal proceeding).
5. On 2 October 2018 the parties filed proposed consent orders for the 2018 Tribunal proceeding to be adjourned to a directions hearing on 16 October 2018 with the explanation that they had reached an in principle agreement in relation to the dispute subject to ongoing negotiations regarding the scope of the rectification works. The Tribunal made an order adjourning the proceeding to a directions hearing on 16 October 2018.
6. On 16 October 2018 the parties filed proposed consent orders for the withdrawal of the 2018 Tribunal proceeding with no order as to costs and the Tribunal made orders to that effect on that date.
7. On 16 May 2023 the Building Commissioner filed with the Tribunal another application to transfer the matter to the Tribunal under s 55(1) of the BSCRA Act for the Tribunal to make a decision under s 51 of the BSCRA Act regarding alleged non-compliance with the BRO.
8. There has been a significant delay in the progression of the proceeding due to the following circumstances:
   • The first directions hearing was listed for 27 June 2023, but on 26 June 2023 the parties filed proposed consent orders for the directions hearing to be vacated and programming orders to be made with a directions hearing to be listed for a date after those programming orders would be complied with.
   • On 26 June 2023 I made orders which consented to the transfer of the matter and made the requested programming orders and listed the matter for a first directions hearing on 5 September 2023.[2]
   • The first directions hearing was vacated and relisted on a further three occasions at the request of the parties and was eventually held on 7 March 2024. At that directions hearing the proceeding was adjourned to a further directions hearing on 18 April 2024 to enable the parties to confer.
   • On 17 April 2024 the parties filed proposed consent orders for the directions hearing listed on 18 April 2024 to be vacated and a programming order to be made with a directions hearing to be listed for a date after that programming order would be complied with.
   • On 17 April 2024 the Tribunal made the requested orders and listed the matter for a further directions hearing on 5 September 2024.
9. On 30 August 2024 the respondent filed the dismissal application detailed in [13] below.
10. The parties filed submissions and affidavits in respect of the dismissal application, which I then heard on 12 May 2025.

1. The respondent has applied to the Tribunal for an order that the proceeding be dismissed or struck out (dismissal application) on one or more of the following grounds:

(1) For want of prosecution by the applicant (Ground 1).

(2) As an abuse of process due to the operation of a deed of settlement and release executed in counterparts by the applicant and the respondent in December 2018[3] (Settlement Deed) (Ground 2).

(3) That the Tribunal does not have jurisdiction because the matter is in federal jurisdiction in the circumstances where the applicant sought relief in a proceeding it commenced against the respondent in the Supreme Court on 3 March 2017 (Ground 3).

The Tribunal's power to dismiss or strike out a proceeding

1. Section 46(3), (4) and (5) of the SAT Act gives the Tribunal, constituted by a legally qualified member, on the application of a party or on its own initiative, the power to dismiss or strike out a proceeding for want of prosecution.
2. Section 47 of the SAT Act gives the Tribunal, constituted by a legally qualified member, on the application of a party or on its own initiative, the power to dismiss or strike out a proceeding as being frivolous, vexatious, misconceived or lacking in substance, or as being used for an improper purpose or as otherwise being an abuse of process.
3. The term 'misconceived' connotes a misunderstanding of legal principle and the term 'lacking in substance' connotes an untenable proposition of law or fact.[4]
4. Whilst the circumstances in which an abuse of process may arise are extremely varied they will usually fall into one of three categories, namely: (i) a court's processes being invoked for an illegitimate or collateral purpose; or (ii) the use of a court's procedures being unjustifiably oppressive to a party; or (iii) the use of a court's procedures bringing the administration of justice into disrepute.[5]
5. Consistent with the informality of the Tribunal's procedures, proceedings before the Tribunal are not conducted by reference to formal pleadings.[6]
6. Given the absence of formal pleadings, the power in s 47 of the SAT Act should be exercised particularly cautiously if it is being exercised prior to the substantive hearing of an applicant's case.[7]
7. In relation to its exercise at the interlocutory stage, the power in s 47 of the SAT Act has been viewed as analogous to the power of courts to summarily dismiss a proceeding when pleadings fail to disclose any reasonable cause of action.[8] The principles applicable to the exercise of that power have been considered applicable to the exercise of the power in s 47 and in order to dismiss or strike out a proceeding it should be demonstrated that it is so obviously untenable that it cannot possibly succeed or is manifestly groundless or that it discloses a case which the court is satisfied cannot succeed.[9]

1. I will deal with Ground 2 first, because as counsel for the respondent, Mr Swanson stated during the hearing of the dismissal application, the respondent contends that the Settlement Deed is 'a full answer to the case'.[10]

1. To determine Ground 2, I need to construe the Settlement Deed.
2. The principles that apply to the construction of contracts apply to the construction of deeds.[11]
3. The construction of a contract (and therefore also a deed) involves determination of the meaning of the words of the deed by reference to its text, context and purpose.[12]
4. The general words of a release in a deed are to be restrained by the recital or introductory matter in the deed and are limited to the things which were in the contemplation of the parties at the time when the release was given and the intent of the party by whom the release is given.[13]
5. The recitals in the Settlement Deed (in which 'Hanssen' refers to the respondent and 'the Owners' refers to the applicant) are as follows:

1. In or about November 2009 to April 2011 Hanssen constructed the X2 Apartments ("Apartments") at 143 Adelaide Terrace, East Perth ("Building Services").
2. On or about 3 March 2017, the Owners commenced Supreme Court proceedings CIV 1367 of 2017 against Hanssen alleging the Building Services in common Areas of the Apartments were not properly carried out or were faulty and defective ("SC Proceedings").

1. On or about 15 March 2017, the Owners lodged complaint ref: C144371 with the Building Commission under s5 of the Building Services (Complaint Resolution and Administration) Act 2011 ("Act") alleging the Building Services in common areas of the Apartments had not been carried out in a proper and proficient manner or were faulty or unsatisfactory ("Complaint 1").

1. On or about 24 July 2017, the Building Commission made Building Remedy Order No. 186 of 2017 with respect to Complaint 1 in which the rectification works Hanssen was required to undertake within 28 days were set out ("BRO").
2. On or about 27 November 2017, the Owners lodged complaint ref: C154685 with the Building Commission under s51 of the Act alleging Hanssen had failed to comply with the BRO ("Complaint 2").
3. On or about 28 May 2018, the Building Commission referred Complaint 2 to the State Administrative Tribunal ("SAT") under s55 of the Act and thereby commenced SAT proceedings CC 1149/2018 ("SAT Proceedings").
4. Without admission of liability, the parties wish to settle all matters arising out of A to F above in accordance with this deed.

1. Clause 1 of the Settlement Deed provides that the respondent is to carry out the 'Rectification Works' described in Annexure 1 to the deed and that Mr Richard Machell of Prescient Consulting is to certify completion of the Rectification Works and the respondent is to provide the 'Completion Certificate' to the applicant.
2. The 'Completion Certificate' was provided by Mr Machell on 2 April 2019.[14]
3. Clause 2 of the Settlement Deed states that the parties acknowledge that on 16 October 2018 the SAT Proceedings referred to in Recital F[15] were withdrawn by the applicant and that within two days of execution of the deed the applicant will arrange to file a notice of discontinuance of the SC proceedings referred to in Recital B.
4. Clause 4 of the Settlement Deed provides that upon receipt of the Completion Certificate each party releases the other party from any 'Claims' relating to, arising out of, or in connection with the matters referred to in Recitals A to F and provides that:
   1. In this clause 4, "Claim" means any action, allegation, dispute, debt, investigation, inquiry, cause of action, liability, claim for contribution or indemnity, proceeding, prosecution, litigation, arbitration, mediation, costs (whether or not the subject of a Court order and including any unsatisfied costs orders), suit or demand of any nature howsoever arising, whether present or future, fixed or unascertained, actual or contingent, and whether at law, in equity, or under statute[.]
5. Clause 6 of the Settlement Deed provides that the deed may be pleaded as a bar to any proceeding or action against a party, save for with respect to the parties' rights and obligations pursuant to the deed.
6. In my view, it is clear from Recitals A to F that the purpose of the Settlement Deed was to settle all the matters arising out of those recitals, which expressly include the BRO and the 2018 Tribunal proceeding.
7. It is clear from clause 4 of the Settlement Deed that the intention of the parties was to release each other from any 'Claims' (as defined in clause 4) relating to, arising out of, or in connection with those matters upon receipt of the 'Completion Certificate'.
8. It is also clear from clause 6 of the Settlement Deed that each party is barred from bringing any proceeding or action against the other party concerning those matters, except for a proceeding or action in respect of the rights or obligation pursuant to the deed.

Does the Settlement Deed preclude the applicant from pursuing this proceeding?

1. Section 51 of the BSCRA Act provides that if the Building Commissioner, or in this case the Tribunal because the matter has been transferred to the Tribunal, is satisfied that a work order has not been complied with then it can revoke the work order and replace it with a monetary order.
2. This is a proceeding under s 51 of the BSCRA Act. It is not a proceeding in respect of the rights or obligations of the parties pursuant to the Settlement Deed.
3. In my view, for the reasons I have given in [32] to [34] above, the provisions of the Settlement Deed clearly and expressly preclude the applicant from seeking an order under s 51 of the BSCRA Act to replace the BRO.

1. Consequent to my view in [37] above, I have concluded that this proceeding is so obviously untenable that the applicant cannot possibly succeed in obtaining an order under s 51 of the BSCRA Act and, therefore, I should exercise the power in s 47 of the SAT Act to dismiss the proceeding.
2. However, taking into consideration my comments in [16] and [17] above about the meaning of the terms 'misconceived', 'lacking in substance' and 'abuse of process', in my opinion it is more appropriate for me to dismiss the proceeding on the basis that it is misconceived or lacking in substance, rather than being an abuse of process.[16]
3. Because of my decision above, it is not necessary for me to deal with Ground 1 or Ground 3.

1. Pursuant to s 47 of the State Administrative Tribunal Act 2004 (WA) the proceeding is dismissed as it is misconceived or lacking in substance.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

[1] I am a legally qualified senior member of the Tribunal, which satisfies the requirement of s 47(3) of the SAT Act.

[2] I was not aware of the 2018 Tribunal proceeding when I made the order consenting to the transfer of this matter to the Tribunal by the Building Commissioner. I only became aware of the 2018 Tribunal proceeding when I read the Recitals in the Settlement Deed, which is attached to the affidavit of Luke Francis George Swanson sworn on 30 August 2024 which was lodged in support of the dismissal application referred to in [11] and [13] of these reasons for decision.

[3] Attachments LFGS-1 and LFGS-2 to the affidavit of Luke Francis George Swanson sworn on 30 August 2024 and filed with the Tribunal on that date.

[4] Laurent and Commissioner of Police [2009] WASAT 254 (Laurent) [23] (Pritchard DP).

[5] Legal Services and Complaints Committee and McCardle [No 2] [2023] WASAT 131 [119] (Pritchard P, Aitken SM and Povey M).

[9] Laurent [21], citing Ambrus and Churches of Christ Homes and Community Services Incorporated [2006] WASAT 141 [8] (Chaney DP).

[11] Mercanti v Mercanti [2016] WASCA 206 [72] (Buss P).

[12] Black Box Control Pty Ltd v Terravision Pty Ltd [2016] WASCA 219 [42(2)] (Newnes JA, Murphy JA and Beech J).

[13] Grant v John Grant & Sons Pty Ltd [1954] HCA 23; (1954) 91 CLR 112, 123 - 124 (Dixon CJ, Fullager J, Kitto J and Taylor J).

[14] Attachment LFGS-4 to the affidavit of Luke Francis George Swanson sworn on 30 August 2024 and filed with the Tribunal on that date.

[15] The SAT Proceedings referred to in Recital F were the 2018 Tribunal Proceeding.

[16] Section 47(4) empowers the Tribunal to make an order under s 47 on its own initiative, so it does not matter that the respondent has applied for dismissal of the proceeding on the ground that it is an abuse of process.